Celebrity Sex Tapes... do you need consent?

Let’s imagine that you and your eighteen-year-old girlfriend get bored one day and decide to make a sex tape. Let’s further imagine that your ex-girlfriend eventually breaks up with you but (thankfully) forgets to demand that you destroy the tape. Six years later the ex-girlfriend becomes a reality show star, and the sex tape sitting in your closet is now potentially worth hundreds of thousands of dollars. Can you sell it without getting her consent? Can you release it on the Internet without getting sued by her?

The above “hypothetical” is of course based upon the real-life situation faced by Kendra Wilkinson’s ex-boyfriend, Justin Frye, who reportedly ended up selling a sex tape with Kendra to Vivid Entertainment for $100,000. Kendra has been widely quoted as supposedly being despondent over the release of the tape, stating on her show that “It broke my heart because how can [someone] do that when I have a baby? It just sucks. It’s the hardest thing to deal with right now.”

Most bloggers have been skeptical (to say the least) of Kendra’s protestations and with good reason. Kendra had to consent to the release of the tape in order for a well-established company, like Vivid, to release it legally. California and most states have passed specific laws protecting a person’s “right of publicity,” meaning their right to control and license their image for commercial purposes. The law also recognizes the tort of invasion of privacy. Courts have held that celebrities have a right to keep their sexual life private, and will grant injunctions to celebrities who show a threatened violation of their right of sexual privacy.

If Kendra had objected to release of her sex tape, she could have sought an injunction preventing Vivid or Frye from ever releasing the tape under either a right of publicity or a right of sexual privacy theory. I have no doubt that a court would have granted such an injunction. The fact that she did not obtain the injunction demonstrates that she must have entered into an agreement with Vivid. And, in fact, Radar Online has reported that Kendra has already received $680,000 from Vivid and will get up to 50% of profits from the tape in the future.

So, the bottom line is that if you ever find yourself lucky enough to be in possession of a celebrity sex tape, you are going to need the celebrity’s consent before you can sell or release it. The good news is that both you and the celebrity stand to make a lot of money if you can convince them to consent.

This article courtesy of The Huffington Post

Threading the American Needle.... SCOTUS Rules Against NFL

In what has been described as the Sports Case of the Century, today the Supreme Court has laid down its ruling.... The conduct that the NFL sought approval of was considered "concerted activity" and in violation of The Sherman Act.

In a unanimous opinion authored by Justice Stevens (likely a tribute to the Justice during his last few weeks on the court), lacking both a concurrence or a dissent, the Justices said the league should be considered 32 SEPARATE teams, not a single business falling under the "Single Entity" exception to The Sherman Act.

The league sought to get the same broad protection that is enjoyed by professional baseball, where individual teams can make financial decisions as one business. The case arose from a small Illinois-based manufacturing company that previously held long-term contracts with NFL Properties, the licensing division (and separate company) of the NFL. But, right after the most recent licensing agreement between American Needle and NFL Properties expired, the leagued entered into a 10 year exclusive deal with Reebok. This meant that American Needle was no longer free to continue to negotiate their own manufacturing agreements with ANY team.

In the absence of this competition, fans have complained about skyrocketing prices of team merchandise, to which Justice Stevens addressed in his opinion by stating: "The fact that NFL teams share an interest in making the entire league successful and profitable, and that they must cooperate in the production and scheduling of games provides a perfectly sensible justification for making a host of collective decisions. But the conduct at issue in this case is still concerted activity under the Sherman Act."

So what does this mean for players and fans? In a statement released earlier today from NFLPA Executive Director DeMaurice Smith, he stated that: "Today's Supreme Court ruling is not only a win for players past, present and future, but a win for the fans." He also went on to note that they would continue to fight for a fair collective bargaining agreement in good faith to avoid a lockout.

Celebrity Justice???

On Thursday, May 20, Judge Marsha Revel was tough as nails on the fallen-from-grace, Lindsay Lohan. While Lohan was partying in Cannes and claiming that her Passport was stolen (although the French police have reported to US Authorities that no police report was filed), her attorney, Shawn Chapman Holley, told the judge that she tried to make the flight but was turned away. Judge Revel set Lohan's bail at $100,000, which posted this morning so she will avoid arrest upon return to the States, and set several conditions upon Lohan when she returns. Most notably: Lohan will have to wear the SCRAM bracelet, which will alert authorities (by report every 30 minutes) of Lohan's blood alcohol level. Lindsay was ordered to not drink any alcohol until her formal hearing, and is to be randomly drug tested as well. Attorney Holley argued against the random drug testing, but the judge reminded her that Lindsay was charged with being under the influence of cocaine in 2007, to which the attorney responded "I don't know what else to tell you."

Although Lohan has allegedly sent out pleas to friends to find a private jet to get her back to the states, pictures as recently as this morning show her getting off a party yacht at 7:30am French time. Other pictures have surfaced of her partying during the days immediately preceding the hearing that she failed to show for. Her attorney reports that she will come back to the United States sometime today, and that they will be at the Beverly Hills Courthouse on Monday morning at 8:30am.

Will Lindsay Lohan have to finally face the music?

S.D.N.Y. hands down new copyright decision. RIAA gets the big W.

The music industry has landed another blow in a recent string of copyright cases against Peer-2-Peer networking giants. U.S. District Court Judge Kimba Wood for the Southern District of New York has ruled, on summary judgment mind you, that Limewire, one of the oldest file-sharing networks on the internet, is guilty of inducement of copyright infringement and engaging in unfair competition.

The theory of copyright inducement was first officially proffered by the Supreme Court in the landmark case of MGM v. Grokster, 545 U.S. 913 (2005), when one "engages in culpable expession or conduct" that would encourage another to commit infringement.

Similar to Grokster, surveys indicated that nearly 98.8% of the material downloaded through LimeWire are copyrighted materials, therefore making them unauthorized for distribution through LimeWire's network.

The RIAA has already reacted to the news in releasing the following comment: "This definitive ruling is an extraordinary victory for the entire creative community," said Mitch Bainwol, the organization's chairman and CEO. "Unlike other P2P services that negotiated licenses, imposed filters or otherwise chose to discontinue their legal conduct following the Supreme Court's decision in the Grokster case, LimeWire instead thumbed its nose at the law and creators. The court's decision is an important milestone in the creative community's fight to reclaim the Internet as a platform for legitimate commerce."

Arista Records Summary Judgment Opinion

Big Mac won't face perjury charges

For Big Mac, there's good news, and there's bad news.

First, the bad news: he probably won't be going to Cooperstown.

On the bright side, he probably isn't going to jail either.

In not-so-shocking news, former St. Louis Cardinal first baseman (and current Cardinal hitting coach) Mark McGwire came clean yesterday, admitting in a statement to the Associated Press that he used steroids on and off for nearly a decade, including during his magical 1998 season when he and slugger Sammy Sosa's historic home-run chase captivated the nation. McGwire also admitted to using human growth hormone during his career. While the scores of sports writers who opted not to expose the obvious influx of steroid-use at its peak in the 1990s continue to demonize the very athletes they formerly praised as icons, very few have taken the time to evaluate the legal aspect of the situation.

McGwire testified before the Committee on Government Reform of the House of Representatives on March 17, 2005, where he declined to answer questions about whether he used steroids during his career in Major League Baseball. When questioned about his suspected use, McGwire neither confirmed nor denied using performance-enhancing drugs, claiming his lawyers had advised him not to answer such questions and instead repeating the line "I'm not here to talk about the past."

Though McGwire's behavior did little to improve his credibility in the eyes of baseball fans, it should be enough to help him avoid any perjury charges. Perjury requires knowingly lying under oath, and by avoiding the issue, McGwire avoided committing the crime. McGwire said he then sought immunity, which would have allowed him to implicate himself without the risk of being prosecuted, but Attorney General Alberto Gonzalez decided the privilege wasn't justified.

Last night, McGwire was interviewed by Bob Costas on the MLB Network, claiming that after failing to get immunity, he had little choice but to opt not to talk about his past steroid-use while under oath:

"Our lawyers were down there trying to get immunity for me. I wanted to talk. I wanted to get this off my chest. Well, we didn't get immunity. Here I was in a situation where I had two scenarios: Possible prosecution or possible grand-jury testimonies. Well you know what happens when there's a possible prosecution? You bring in [your whole family, your friends...]...anybody around you. How the heck am I going to bring those people in for some stupid act that I did? So you know what I did? We agreed not to talk about the past. And it was not enjoyable to do that [...] But I had to do what I had to do to protect myself, to protect my family and to protect my friends. Anybody who was in my shoes that had those scenarios set out in front of them would have done the same exact thing."
The full transcript of the interview can be found here.
Even if McGwire had denied using steroids while under oath, he'd probably be in the clear regarding any potential perjury charges at this point. Under Title 18 of the U.S. Code (Section 1001), there's a five-year statute of limitations for federal perjury charges, meaning that McGwire would have to face perjury charges by March 17, 2010 for any statements made during his 2005 Congressional apperance. The amount of evidence the government would be able to gather for a potential indictment by then is unclear, though there are some other former players who would probably be of some assistance. Just today, McGwire's former teammate Jose Canseco claimed the two injected each other with steroids while with the Oakland Athletics between 1986 and 1992. Canseco has accused McGwire and several other players of steroid use multiple times in the past, even writing two books on the issue.
If McGwire had told the truth regarding his steroid use, he could have theoretically faced criminal charges under the Anabolic Steroid Control Act. Enacted in 1990, the Act criminalized non-medical use of anabolic steroids. However, several prominent athletes have admitted to performance-enhancing drug use since then, and none have been prosecuted under the Act. (The Act was amended in 2004 to further clarify the definition of anabolic steroids.)
Telling the truth would have likely aided federal authorities in their investigation of the steroid issue in recent years, though that probably would have meant revealing the steroid habits of friends and teammates. Despite his efforts, McGwire's legacy has been heavily tarnished within the baseball world. Though he hit 583 home runs during his 16-year career, McGwire has fallen far short of being elected to the Hall of Fame in his four years of eligibility, appearing on only 23.7 percent of the Baseball Writers Association of America's ballots in the 2010 voting (to be elected, players must appear on 75 percent of the ballots).

Partially to attempt to improve the former-All-Star's image, Cardinal manager Tony La Russa hired McGwire as the team's hitting coach in October. It is believed the organization wanted McGwire to address his steroid issue before the team begins spring training next month.
There was no official MLB policy regarding steroid use before 2002, and use of performance-enhancing drugs is widely speculated to have been rampant during the 1990s and the early 2000s. Heightened suspicions and allegations lead to testing, which has become gradually stricter throughout the last decade. After between five and seven percent of players tested positive during random drug tests in 2003, new policies were instituted in 2004 and then again in 2005. Banned substances currently include steroids, steroid precursors, masking agents and diuretics. Random testing is done throughout the offseason, and every player faces an unannounced test at least once each year. First-time offenders face 50-game unpaid suspensions, while third-time offenders face a lifetime suspension from MLB.

Vermont Law professor Michael McCann breaks down these and related McGwire legal issues in greater detail over at SI.com.